Your Workplace Rights with ADHD

ADHD is a protected disability, according to the Americans with Disabilities Act. Which means you may be eligible for work accommodations and protections from discrimination. Read on to learn whether you meet the ADA conditions, and what legal precedence is on your side.

United States Capitol Building, Washington, DC, a symbol for the Americans with Disabilities Act

What is the ADA?

The Americans with Disabilities Act, or ADA, was established by Congress in 1990. The purpose of the law is to end discrimination in the workplace and to provide equal employment opportunities for people with disabilities, like ADHD.

What employers are covered by the ADA?

The ADA applies to businesses with 15 or more employees. This includes:

private employers

state and local governments

employment agencies

labor organizations

and labor-management committees

Is ADHD included in the ADA?

Yes. The ADA provides for “mental” conditions or mental illnesses, but as with physical impairments, the diagnosis of a mental illness or mental impairment is not sufficient to qualify an employee for protection under the law.

The following conditions must be met for ADHD to qualify for coverage:

It must cause significant impact or limitation in a major life activity or function

The individual must be regarded as having a disability

The individual must have a record of having been viewed as being disabled.

The applicant must also be able to perform the essential job functions with or without accommodations to qualify as an individual with a disability under the meaning of the Act.

Can an employer or potential employer ask if I have ADHD?

No. Your employer or potential employer cannot ask questions about your medical or psychiatric history. An exception, however, is if an applicant asks for reasonable accommodation for the hiring process. If the need for this accommodation is not obvious, an employer may ask an applicant for reasonable documentation about his/her disability.

Do I have to tell my employer that I have ADHD in order to be covered by the ADA?

Yes. Several courts have already ruled that in these situations, lack of knowledge of the condition or of how the disability may affect the employee may be an used as a legitimate defense for the employer.

What are reasonable accommodations?

An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship, such as being too expensive or creating other problems within the workplace.

Can an employer lower my salary or pay me less than other employees doing the same job because I need a reasonable accommodation?

No. An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar positions.

I take medications for my ADHD. Do I still qualify for accommodations on the job?

The U.S. Supreme Court ruled in Sutton v. United Airlines, Inc., and again in Murphy v. United Parcel Service, Inc., that if a person has little or no difficulty performing any major life activity because s/he uses a mitigating measure, then that person will not meet the ADA’s first definition of “disability.” In other words, if you are vision impaired but can correct that impairment by wearing glasses, then you are not considered disabled. Likewise, if ADHD is successfully managed with medication, then it might be difficult to claim ADHD as an impairment.

What do I do if I think that I’m being discriminated against?

If you think you have been discriminated against in employment on the basis of your ADHD, you should contact the U.S. Equal Employment Opportunity Commission within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a State or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected.

You may file a charge of discrimination on the basis of disability by contacting any EEOC field office, located in cities throughout the United States. To contact the EEOC, look in your telephone directory under “U.S. Government.” You can also call (800) 669-4000 for more information.

What have employers been told about ADHD and the ADA?

An article published by the New York Law Journal was not very encouraging. It says, “As more employees learn that their work-related problems may be attributable to Adult ADHD, some will likely seek protection fromdiscrimination under the Act. Employers faced with these disability discrimination claims should institute a two-pronged defense.”

“First, the employer should force the employee to meet his burden of proving that he does in fact suffer from ADHD, and that the employee’s ADHD impairs a major life activity. If the employee successfully establishes that he is disabled within the meaning of the Act, the employer should argue that the employee is unable to perform the essential functions of his job. This argument will be aided if the employer can point to a written job description stating that general skills such as following instructions, completing tasks on time and getting along with others are essential functions of the employee’s particular position.”

“The symptoms of Adult ADHD are such that they will likely prevent the employee from performing these essential functions. Therefore,employees who are terminated because of behavior attributable to Adult ADHD will probably not be entitled to protection under the Act.”

Keep in mind that the above is a legal opinion and not law. Still, it would be to the benefit of both you and your employer to resolve this out of court.

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In 2007, at age 47, I was diagnosed with ADD. I had abandoned pursuit of a college degree 25 years before, thinking I was lazy and unfocused. Of course those of you who have a late diagnosis know what happens to your psyche once you have been diagnosed and a treatment regimen is successful. After a year of seeing how the treatment affected my work and other endeavors, i decided to return to college.

I successfully applied for re-entry to Rutgers University Newark campus. This was the Spring 2009 semester. In the Fall 2009 semester, I sought accommodations. I was not, nor am I now clear on what accommodations I am entitled to with my diagnoses (I was further diagnosed with depression in 2009). I signed all clearances and releases. I got my medical records and submitted them. I submitted to the required intake interview. I even entered into counseling with the campus counseling center.

The counseling turned out to be totally inappropriate for me. It was psychotherapy. He asked questions about my childhood, my growing up, my marriage. This was the predominance of my sessions. I felt like every weekly session was designed to disrobe and send me out feeling naked and exposed. At one point my counselor told me that he was trying to figure out what my problem was. He said that I seemed like a nice guy. Why could i not just get it together and do what I needed to do to accomplish my goal of graduation and teacher certification? You see, despite my faithful application to my medical regime, the rigors of the academic pursuit exposed how I was still subject to the symptoms of ADD and depression. They were yet disaffecting my academic performance.

Every semester I asked about my application for accommodations. I asked the intake counselor. He said that it was with the counseling center. I asked the counseling center. They told me that it was in the office of the dean that was supposed to handle accommodations. I called her office. They had no record of me. I went back to the counseling center, they said it was with the dean.

This went on until May 2013, when I barely graduated with a 2.5 GPA. In New Jersey, the minimum GPA for teacher certification is 2.75, and that GPA requires a substantially higher score on the subject matter PRAXIS exam. I never got the accommodations. I still do not know, have never been officially briefed on what accommodations could have helped me as I struggled through, not intellectually, but psychologically. I would be late for class. I would get demerits for this. Eventually the futility set in and I would not even try. I always felt embarrassed. Once again I felt like I was lazy and unfocused. I eventually did get competent counseling, but it was too late. The damage had been done, and Rutgers still had not authorized accommodations. I would tell professors about my situation. Some were sympathetic. Some were not. They all wanted me to get official documentation from the accommodations office, which despite my cooperation and being reassured that there was nothing else for me to do, was not forthcoming.

I then successfully applied to a graduate program at Rutgers. This only lasted three semesters, at which time I was asked to leave the program, because the same symptoms were happening. At times I would try too hard and that would be my destruction. All in all, I have $150,000 in school debt and no way to pay for it. I cannot become a substitute teacher, because the last semester at Rutgers was unfunded, because I was taking only undergrad courses. I did not realize that these classes would not improve my undergrad GPA. This last semester was when I finally got an ostensible response from a letter to the University president who expressed shock and promised to address my situation. That turned out to be merely a game of CYA. When I realized all of this, I withdrew. Although I informed the dean who the president directed to work with me, I was yet considered as officially withdrawing too late and thus liable for the semester tuition. This resulted in a financial hold on my transcripts. So much for at least gaining classroom experience, building rapport and demonstrating my competence by serving as a substitute teacher.

I filed a complaint in 2011 with the state and in 2015 with the federal government. The state never officially responded. The U.S. Department of Education officially denied my complaint citing untimeliness and failure to follow through with the Rutgers process. I told the investigator that I had. She was apparently told that I had not. I learned eventually that my file was found in the counseling center. They had never forwarded it to the dean that handled accommodations.

I am pressing on. I drive for Lyft. I am working to get my photographic artwork on exhibit and sold. I am working on recording and producing a CD of my many music compositions. I am also working on getting a Commercial Driver License. I have a real estate instructor license. Once I clear the CDL, and especially if I get a job, I will next seek to get a continuing education course approved by the real estate commission. I already have the continuing education endorsement on my instructor license. I have concluded that I need to avoid as best I can any employment that requires a rigid schedule and involves mindless repetition.

I don’t know what to do. My life, and i do not say this with utter hopelessness, is ruined. I am worse off now than I was in 2009. I had $0 debt of any kind, save a tax debt due to my real estate sales success that has since been extinguished. Now I have $150,000 in debt. Everybody I talk to says that Rutgers’ refusal to provide accommodations was illegal discrimination. Yet, no one in authority to do so has helped me. I used to really believe in the system, that I was protected from this sort of thing. New Jersey has the most comprehensive anti-discrimination laws in the country, save California. In my real estate pre-licensing courses, I would emphatically urge pre-licensees to take this very seriously, because I do know how at least fair housing cases have been addressed. Now I believe it is all window dressing and that if you are not of the most favored current protected group you are, well, not protected. It is Animal Farm all over again. All protected classes are equal. ..but some are more equal than others.

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